ANNA B. NOEL and G. L. NOEL, Her Husband, Appellants,
SELMER OSTLIE, Appellee
APPEAL from a judgment of the Superior Court of the County of Navajo. P. A. Sawyer, Judge. Judgment affirmed.
Mr. W. E. Ferguson, for Appellants.
Mr. C. B. Wilson, Mr. O. C. Compton, and Mr. C. D. McCauley, for Appellee.
[42 Ariz. 115] ROSS, C. J.
Anna B. Noel and her husband, G. L. Noel, commenced action to recover damages for personal injuries which they allege Anna B. sustained in a collision at a point near Joseph City, Arizona, on Highway 66, February 17, 1931, about 10 o'clock P.M., between defendant Selmer Ostlie's Ford sedan, being driven by defendant, and a De Soto roadster in which she was riding, being driven by one Bernice J. Rowe. The negligence charged is that defendant, traveling in a westerly direction on said highway, at a dangerous, reckless, and excessive rate of speed, and in excess of 35 miles per hour, drove his Ford sedan over to and upon the south half of said road and collided with the De Soto roadster in which plaintiff was riding, while it was proceeding in an easterly or opposite direction, and while it was occupying the south half of said highway, causing her great bodily injury, etc. The answer consists of general and specific denials and affirmative allegations to the effect that the collision was the result of plaintiff's negligence, in that the automobile in which she was riding was traveling on the wrong side of the road; that is, north of the center thereof. The case was tried before a jury, and the verdict and judgment favored defendant.
The plaintiffs have appealed. The grounds of the appeal are: The refusal of the court to grant plaintiffs a new trial on newly discovered evidence; that the verdict and judgment
are not justified by the evidence [42 Ariz. 116] and are contrary to law; and misdirections of the jury as to the law.
The showing of newly discovered evidence and diligence in connection therewith is insufficient. Part of the so-called newly discovered evidence was known by plaintiffs at and before the trial, such as the condition of the road where the collision took place, and the location thereon of broken glass; and that concerning the speed at which defendant was traveling immediately prior to the accident is more or less cumulative, and probably would not cause a different result upon a new trial.
On the question of the sufficiency of the evidence to support the verdict, we must abide by the rule we have many times announced. The issues were not many nor were they complicated. It was a case of the "pot calling the kettle black." Plaintiffs charged against defendant a specific act of negligence, that is, of driving on the wrong side of the road at an excessive, dangerous, and unlawful rate of speed; and the defendant answered, "Not I but thou art the culprit." The evidence on this issue was quite as clear-cut as the issue itself. The defendant and his companions had attended a basket-ball game at Holbrook and were returning to their homes at Winslow. There were four of them, two of whom were members of the faculty of the public schools of Winslow, one a bookkeeper of the First National Bank, and the defendant; and they all testified that the Ford sedan was proceeding westerly, north of the center of the road, up a slight incline, and when near the brow of a small hill the De Soto came in sight traveling towards them, and that as the two cars approached each other the De Soto passed over to the north side of the road and collided with the Ford's left front wheel, forcing it off the road on the north side thereof. The two occupants of the De Soto roadster, plaintiff and Bernice J. Rowe, testified that they were on the right side [42 Ariz. 117] of the center of the road when the Ford sedan passed over to that side and ran into them. This conflict in the evidence was irreconcilable, and the jury had to reject one side and accept the other. They accepted the defendant's version. Under our rule, we will not disturb that verdict.
Whether prejudicial error occured in the court's instructions to the jury or not is somewhat difficult to determine. The instructions were very voluminous. They cover twenty-three pages of the abstract of record. Twelve were asked and given for plaintiff; and twenty-three were asked by the defendant and nineteen given as asked and one modified and given. It would seem that the really essential and helpful instructions on the issue involved might have occupied very much less space. The custom of copying instructions from cases and books on instructions and presenting them to the court with a request that they be given whether applicable or not is not a commendable practice nor one that is likely to get before the jury the correct legal principles of the case. Counsel should recognize that the law of each case depends upon its facts, and make requests accordingly.
Assignments numbered 1 and 2, based on erroneous instructions, we cannot consider because they do not conform with the rules of this court. Subdivision 4, rule XII.
Assignment No. 3 asserts that the following instruction is erroneous, in that it is confined to one of the issues and gives undue prominence thereto; also that it conflicts with other instructions and omits the question as to proximate cause and the fact that plaintiff was a guest in the Rowe car:
"You are instructed that before you can find the issues in this case for plaintiffs, you must find that defendant did negligently drive his said car upon the south side of the highway and into and against the car so driven by said Bernice J. Rowe, and ...